A Sacramento Superior Court judge on Friday said he needed more convincing that a secret deal between homicide suspect Tiwan Greenwade and deputy prosecutor-turned-District Attorney candidate Noah Phillips was in the works at the man’s murder trial in setting a June hearing to hear more proof of a hidden pact.
“A lot of what I’m perceiving is that there’s a lot of labeling of prosecutorial misconduct, of secret deals, but there’s not enough specificity to support those claims,” Sacramento Superior Court Judge Curtis Fiorini told defense attorney Michael Wise from the bench at the anticipated Friday hearing. “What it comes down to is what Mr. Greenwade did in the courtroom. Did he commit perjury? Did he lie because of a secret deal? We need to see whether there was perjury committed by Mr. Greenwade.”
Wise and defense attorneys Mark Axup and Jon Lippsmeyer argued for a new trial Friday saying new evidence including hours of jailhouse phone calls between Greenwade and his girlfriend show the alleged deal between Phillips and Greenwade torpedoed their clients at trial in the 2016 murder of Ashok Kumar of Sacramento and let Greenwade escape with a lighter manslaughter sentence.
“One of the things I worry about the most is that I believe there was a deal and it evaded the defense camp,” defense attorney Axup argued. “Phillips has a special relationship with the jury. Because of the power of the DA, the power he has with the jury, he is vouching for Mr. Greenwade. He is sprinkling the holy water of justice on (Greenwade’s) testimony. That’s the greatest misconduct. He destroyed the jury.”
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Defense attorneys also blasted the debated seven-page script of questions Phillips provided to Greenwade attorney Danny Brace ahead of Greenwade’s trial testimony as proof of a secret deal, arguing they didn’t know about the questions or a deal and couldn’t cross-examine Greenwade about either.
“There’s no greater motivation that the inducement of a reduced sentence,” Axup told Fiorini. “These are two lawyers who have thrown out the truth.”
But Fiorini said Wise and the other attorneys had the chance to cross-examine Greenwade on the possibility of a deal but did not. He also referred to the pre-prepared questions as “talking points.” Unusual, yes, Fiorini said, but not a crib sheet to help Greenwade fabricate his testimony.
“I fully agree that it is not usual, but that’s not the problem. The problem is whether Greenwade was compelled to testify in a certain way,” Fiorini said. “It appears there’s no perjury. There needs to be a showing that the prosecutor was putting words in Greenwade’s mouth.”
The stakes are high for Greenwade’s three co-defendants who were convicted of first-degree murder on the strength of what Wise said was perjured testimony by Greenwade and coached by Phillips.
High, too, for Sacramento County District Attorney’s prosecutors who face a possible mistrial in the case; and, also for candidate Phillips, who sat in Fiorini’s courtroom Friday, the subject of ethical allegations less than a month before Election Day.
Phillips, who is running against District Attorney Anne Marie Schubert, says the allegations are a politically motivated offensive to derail his campaign with weeks to go before the June 5 election.
Phillips repeated the claim after the hearing, saying the DA’s motion is “out of her playbook.”
“I argued for first-degree murder. There’s no secret deal,” Phillips said.
“Now my own office is trying to throw me under the bus to use as a political weapon.”
The attorneys had received an unusual boost from a District Attorney’s motion filed ahead of the Friday hearing seeking to block delays in the case.
In the filing were copies of emails plumbed from Phillips’ email server that appear to show that Phillips told defense attorneys he also planned to dismiss special circumstance allegations against Greenwade. DA’s prosecutors also accused Phillips of making the offer without an OK from Assistant Chief Deputy District Attorney Rod Norgaard.
Norgaard declared in the motion that he knew nothing about the dismissal deal and that he, not Phillips, was the only one able to make such a call.
New Greenwade attorney Kenneth Rosenfeld was skeptical of the DA's claims prior to the hearing.
"From what I can see, this case is all gray. It's 100 shades of gray," Rosenfeld said.
"I find it very hard to believe it was a rogue DA who did this without the agreement of supervisors," Rosenfeld continued, adding the office's culture would make such a move unlikely. "(Prosecutors) don't independently dismiss special circumstances. I find that (claim) curious at a minimum."
Dawn Bladet, the supervising deputy district attorney who took over the case from Phillips and filed the DA’s motion, declined comment after the hearing.
Fiorini heard roughly two hours of argument as senior prosecutors and other attorneys took in the proceedings from the gallery before setting a June 8 evidentiary hearing on the misconduct claims.
Fiorini ordered defense attorneys to provide sworn witness affidavits to substantiate their claims of misconduct and told Phillips to return for the June hearing in case he was asked to testify.